Dissenting Opinion by
Mr. Justice Benjamin R. Jones:The majority opinion states the basic question on this appeal to be: “Whether a 6% per cent common stock dividend of Sun Oil Company stock is a part of the net income which was given by the settlor [of the trust] to the life tenant, or whether the stock should be awarded to principal.” As stated, this question omits any reference to certain stipulated facts the consideration of which is vital to a resolution of the question : (1) this six per cent stock dividend was received by the trustees from Sun Oil Company on December 8, 1961; (2) this dividend was payable on shares of Sun Oil Company in shares of stock of Sun Oil Company and such shares were of the same kind and rank as the shares upon which the dividend was paid.1 The importance of such facts is two-fold: (1) this particular stock dividend was paid after the decision of this Court in Catherwood Trust, 405 Pa. 61, 173 A. 2d 86, which abolished prospectively the Pennsylvania Rule of Appor*111tionment [the Rule] as to stock dividends and applied to the distribution of future stock dividends the provisions of the Principal and Income Act of 1947 [the Act] ;2 (2) this particular stock dividend falls squarely within the class of dividends deemed to be principal under Section 5 (1) of the Act.
The majority opinion reaches the conclusion that this particular 6% common stock dividend of the Sun Oil Company constitutes “net income” given by the settlor of this trust to the life tenant. In arriving at this conclusion, the majority opinion does so upon four premises: first, it holds that “[n]ever in Pennsylvania’s long history until 1945 [when a change or modification was made by the Legislature] had a life tenant’s right to ordinary cash and ordinary stock dividends been denied” and that “[in] all the history of Pennsylvania Rule of Apportionment this Court has never held that stock dividends, up to and including 6%, were apportionable, but on the contrary all such dividends were considered income.”; second,That it was not the intent of this Court in Catherioood to abolish the right of a life tenant to “ordinary stock dividends”, i.e., stock dividends which do not exceed six per cent in any one year; third, that if the statement in the footnote (p. 78) in Catherwood, reading as follows: “This statement [in all audits now pending' and henceforth, distributions shall be made under the provisions of the Principal' and Income Act of 1947] applies to all receipts, including stock distributions of sise (6%) per cent or less* . . .”, was intended by this Court to subject the distribution of such ordinary small stock dividends to the provisions of the Principal and Income Act of 1947, supra, then such statement in the footnote is overruled; fourth, that, even though such statement *112in the footnote in Gatherwood be not overruled but considered controlling, nevertheless, jmder the instant factual situation, the life tenants are entitled to distribution of this stock dividend under the provisions of Section 2 of .the Act, supra. With the last three premises expressed in the majority opinion .1 cannot agree and to a discussion. of such premises I particularly direct my dissent.
In the first place, I agree that this Court in its application, for approximately one hundred years, of the Rule never held that the declaration of ordinary common stock dividends, not exceeding 6% in any .one year, constituted an apportionable event. In Catherwood, (pp. 77, 78), we expressly stated: “While we have never held that ordinary small stock dividends should be considered as income payable to the life tenant, we have not held to the contrary; our prior decisions dealt with stock dividends, extraordinary in nature. If a total stock distribution for the current year is payable at the rate of 6% or less of the corporation’s outstanding shares before such distributions were made such distribution in stock of the distributing corporation should be treated as income.” The majority opinion, correctly states that, under the Rule, ordinary small stock dividends, not exceeding 6% in any one year, were not apportionable and were deemed income payable to the life tenant, and, therefore, I agree with its first- premise. From such premise, however, it. cannot be argued that this stock dividend shall be deemed income because prior to the payment of such dividend this Court in Catherwood abolished prospectively the Rule and declared that thereafter the distribution of stock dividends should be governed by the provisions of the act. While the majority opinion correctly states the manner of distribution of such stock dividends under the Rule, such statement in nowise controls the manner of distribution thereof after the Rule has teen *113abolished. In my view, the first premise of the majority opinion, while historically correct, is of no moment in determining the distribution of this stock dividend paid after the Rule had been abolished. ‘
The second premise of the majority is that it was not the intent of this Court in Catherwood to ..abolish the rights of life tenants to “ordinary small dividends”: The majority would affirm, with the one exception noted hereafter, the ruling in Catherwood and yet exclude from the impact of Catherwood ordinary stock. dividends, not exceeding 6% in any one year. Such a posh tion is untenable. Catherwood abolished the Rule as to dll stock dividends, large or small, ordinary or extraordinary, and made applicable thereafter the provisions of the Act to all distributions of all stock dividends and Catherwood drew no distinction between, the classes and types of stock dividends to the distribution of which thereafter the provisions of the Act would be applicable. In abolishing what had become an unworkable rule of apportionment, Catherwood subjected thereafter the distribution of all stock dividends to the mandate of the Act rather than to' a court-made rule of apportionment. In its second premise, the majority opinion misconceives the intent of this Court expressed in Gathenoood and Avould differentiate between classes of stock dividends when no such differentiation was either made or intended to be made. If the majority of this Court want to overrule Catherwood, such is its privilege. My concern is that, if Catherwood is to be overruled, such overruling should be accomplished expressly and not in the manner implicit in the second premise of the majority opinion.
An examination- of the third premise of the majority opinion leads inevitably to the conclusion that the majority of this Court would now overrule'at least the statement made in the footnote in Catherwood. The majority of this Court now find, in effect, that this *114statement in the footnote in Catherwood should be overruled, that ordinary small stock dividends, not exceeding 6% or less, should be treated as income payable to the life-tenant, and that Section 5 (1), of the Act, supra, should not apply to such dividends. In so doing, the majority of this Court becomes impaled on the horns of a dilemma; either it must overrule Gather-wood in its entirety because Catherwood applied to all distributions of all stock dividends thereafter or accept Catherwood and change the clear and unambiguous language of Section 5 (1) of the Act. There can be no other logical approach to the result reached.
Subsection (1) of Section 5 of the Act provides: “All dividends on shares of a corporation, forming a part of the principal, which arc pagable in the shares of the corporation itself of the same kind and rank as the shares on which such dividend is paid shall be deemed principal.* Subject to the provisions of this section all dividends payable otherwise than in such shares of the corporation itself, including ordinary and extraordinary dividends and dividends payable in shares or other securities or obligations of corporations other than the declaring corporation, shall be deemed income. Where the trustee shall have the option of receiving a dividend, either in cash or in the shares of the declaring corporation, it shall be considered as a cash dividend and deemed income, irrespective of the choice made by the trustee.”
The stock dividend in the case at bar is a dividend on shares and clearly payable in shares of the Sun Oil Company and “of the same kind and rank as the shares on which such dividend is paid.” The Principal and Income Act, supra, draws no distinction between small or large, ordinary or extraordinary, stock dividends of such type and character; on the contrary, *115it provides that all such dividends shall be deemed principal. The case at bar presents a classic example of that which we intended by the insertion of our footnote in Catherwood; even though, under the’Rule, ordinary small stock dividends not exceeding 6% in any one year, were not apportionable and were deemed income payable to the life tenant, upon abolition of the Rule and the application thereto of the Act, such dividends necessarily had to be distributed in accordance with the provisions of the Act. Catherwood abolished the Rule in its entirety and not partially and rendered applicable all the provisions of the Act thereafter.
I fully believe that it would be most salutary if ordinary small stock dividends, not. exceeding 6% in any one year, and payable in shares of the corporation itself of the same rank and kind as the shares upon which the dividend is declared were. deemed income payable to the life tenant. However, such a result can only be accomplished through the legislative process by an amendment of subsection (1), Section 5, of the statute.
To hold, as the majority of this Court would now do, that the statements in the footnote in Catherwood should be overruled and that these ordinary small stock dividends, not exceeding 6%, be held not subject to the provisions of the statute constitutes a complete change and alteration of the clear unequivocal language of the statute, a change which this Court completely lacks the power to accomplish. Catherwood requires the application Of the Act to the distribution of all stock dividends, including the type of stock dividends herein considered, and the provisions of the Act clearly provide that such dividends be deemed principal and not income. I repeat, two alternatives face this Court in order to logically support' its conclusion: either to overrule Catherwood or to change and alter, by judicial fiat, the clear language of the statute and neither alternative will I accept.
*116The fourth premise of the majority opinion is that, even if the statement in the footnote in Catherwood be not overruled, this stock dividend must be deemed income payable to the life tenant by application of Section 2 of the Act. Section 2 provides that the Act “shall govern the ascertainment of income and principal ... in all cases where a principal has been established with . .. . the interposition of a trust”: provided that if the settlor himself “direct the manner of ascertainment of income and principal” or “grant discretion to the trustee, or other person, to do so” then such provision and direction shall control, “notwithstanding [the] act.” Despite the fact that, in the terms of this trust, the settlor has not directed the manner of ascertainment of income and principal and has not granted any discretion to the trustees or other person to do so, the majority of . this Court now holds Section 2 applicable to the extent that other provisions of the Act, particularly Section 5 (1), supra, are not controlling.
In support of this contention, the majority opinion takes two positions: (a) by the enunciation of a completely new rule to effect that, as to all inter vivos trusts created prior to the Act, a gift of “income” or “net income” in a trust must be interpreted to include ordinary stock dividends, not exceeding 6% in any one year, and that such dividends must be deemed income payable to the life tenant, unless the settlor expressed in the trust a contrary intent; (b) in view of the factual circumstances presented in the case at bar, the settlor by the employment of the term “net income” in the gift to the life tenants evidenced an intent that such term include ordinary stock dividends, not exceeding 6% in any one year, of the Sun Oil Company.
An examination of the provisions of Section 2 of the Act and the actual factual situation herein presented reveals the complete unsoundness of both these positions. To adopt the first position of the majority *117opinion requires the promulgation of an entirely new rule which not only lacks legal authority but which directly conflicts with the ruling in Catherwood and, if not, directly contravenes the Act.. Such rule certainly conflicts with Catherwood wherein we held that all stock dividends, regardless of character, were thereafter subject to the Act; even if it did not, it would contravene the Act and would make the general rule enunciated in Section 5(1) the exception and a distortion of the exception in Section 2 of the rule. Unless the majority of this Court now intends to overrule Catherwood the rule promulgated in the majority opinion conflicts both with Catherwood and the Act.
To adopt the second position taken by the majority opinion requires the substitution in Section 2 of the intent of the settlor for the statutorily required direction by the settlor or the grant of discretion to the trustee or other person to make an ascertainment of income and principal. Such a result can only be accomplished by an amendment of Section 2 and any judicial attempt to effect such a change, as the majority now suggests, would not be a construction, but a complete alteration, of the statutory language.
I could agree with the majority opinion that, under the instant factual situation, the life tenants were the principal objects of settlor’s bounty,3 that it was usu*118ally the policy of the Sun Oil Company—whose stock constitutes the only asset of this trust— to declare each year both a cash and a stock dividend and that, since 1926, $1.00 cash dividends have been yearly declared. However, I cannot agree with, the statement in the majority opinion that the Sun Oil Company has paid “since 1913 small (6% or less) stock dividends in many years in-varying percentages”, because the record indicates otherwise. The record shows4 that from 1913 up to and including 1932—the year of creation of this trust—Sun Oil Company paid the following stock dividends: .1913-20%, 1915-60%, 1922-300%, 1925-3%, 1926-6%, 1927-3%, 1928-6%, 1929-9%, 1930-9%, 1932-3%. Thus, in the period preceding the creation of this trust, 10 stock dividends were declared of which 5— including the two immediately prior to the creation of this trust—were in excess of 6%. Assuming -therefore, that every Sun Oil Company stockholder knew the established policy of the Company as to stock dividends, every stockholder must have known that at least one-half, of such stock dividends had been in excess of 6%. Under such a factual situation upon what basis can it be found that the settlor of this trust intended stock dividends not in excess of 6% to be considered “income” or “net income” payable to the life tenants? Would.it not be more logical for the settlor, aware of the stock dividend policy of this Company, to intend that all stock dividends, those not in excess and those in excess of 6%, be considered “income” or “net income” payable to the life tenants? We fail to see that *119the past dividend policy of the Company could reflect an intent on the part of the settlor to include only stock dividends not in excess of 6% to “income” or “net income” payable to the life tenants, a limitation which the majority opinion clearly imposes.
It is further interesting to note that, in the years from 1932 up to and including 1961, the Sun Oil Company paid 14 yearly stock dividends in excess of 6% and only 9 stock dividends of 6% or less. Would the majority hold that the settlor intended all of these stock dividends to be considered “net income” payable to the life tenants or only such stock dividends of 6% or less. There is not a scintilla of evidence on this record upon which to sustain the finding of an intent on the part of the settlor to have stock dividends of 6% or less included within “net income”; on the contrary, the record would more likely, if at all, sustain a finding of intent, based on the past stock dividend history of the Company, that the settlor intended to include in “net income” all stock dividends of the Company regardless of the amount.
I submit that the dilemma in which the majority of this Court finds itself is occasioned by its refusal either to follow the ruling in Oatherwood or to reverse Oatherwood. To escape from this dilemma, a formula is invented by which, it is hoped, the ruling in Oatherwood can be circumvented.. The result is that the conclusion of the .majority constitutes a clear violation of the language of the Act, for which neither factually or legally a justifiable basis exists.5
*120In my opinion, the position taken by the Court in Catherwood is salutary and I must dissent from the attempt, implicit in the majority opinion, either to undermine thé stability or avoid the application of Catherwood.
I would affirm the decree.
The trustees “received 1841.64 shares of Sun Oil Company common stock, as a result of a six per cent stock dividend declared on the 30,694 shares held by [the trustees] in principal.” Fact (1) in Stipulation of Counsel.
Act of July 3, 1947, P. L. 1283, 20 PS §3470.1 et seq.
Emphasis supplied.
Emphasis supplied.
The majority opinion states, inter alia: “. . . for many stockholders of Sun Oil Company stock,—who received only $1.00 a share cash dividends, while shareholders in other large corporations received annually $5.00 or $6.00 or $9.00 a share—these small stock dividends were their bread and butter.” In Pew Trust, 398 Pa. 523, 158 A. 2d 522, we outlined the situation in which the present life tenant found himself during the period of 21 years from 1933 to 1954, and stated: “Prom 1933 through 1954 the [Sun Oil Company’s] total earnings with respect to the shares held by this trust were $1,720,326. The cash dividends ($507,049) and the market value of the stock dividends ($2,111,220) received by the [life tenant] totalled $2,618,268, or $897,942 more than the Company earned *118on the trust shares. If [the life tenant] sold the stocks distributed to him immediately he would have realized this amount; if he retained them, including subsequent stock dividends thereon, he has received from this trust 93,156 shares of the Company’s stock which would have been worth as of December 31, 1954, $6,520,920 absolutely tax free,”
Exhibit A attached to the Stipulation of Counsel.
Furthermore, by the result reached, the majority of this Court avoid determining the principal questions raised on this appeal, i.e., whether the application of the ruling in Oatherwood to this trust violates the due process clause of the 14th Amendment of the U. S. Constitution, the impairment of contract clause of Article I, §10, Clause 1 of the U. S. Constitution and Article I, §17 of the Pennsylvania Constitution and the “law of the case” set forth in Pew Trust, 362 Pa. 468, 67 A. 2d 129.